The Senate Select Committee on Intelligence has taken the unusual step of actively blocking a former committee aide from talking to TPM about congressional oversight of the intelligence community. At issue isn’t classified sources and methods of intelligence gathering but general information about how the committee functions — and how it should function. The committee’s refusal to allow former general counsel Vicki Divoll to disclose unclassified information to a reporter was the first and only time it has sought to block her from making public comments, based on her experience as one of its most senior aides, since she left Capitol Hill in 2003.
The committee’s decision comes amid fallout from leaks of classified National Security Agency documents by ex-NSA contractor Edward Snowden. In light of the Snowden revelations about the country’s secret surveillance programs, TPM was reporting a story based on interviews with members of Congress and current and former aides about the successes and pitfalls of intelligence oversight on Capitol Hill. The goal was to answer some basic questions for readers: How does a classified process differ from public oversight? What challenges do the combination of government secrecy, classified briefings, and strict committee protocols present to legislators trying to control the nation’s sprawling intelligence apparatus?Divoll served as a senior aide on the committee from 2000-2003, including two years as its general counsel. Before that, from 1995-2000 she was assistant general counsel for the Central Intelligence Agency, where she also served as deputy legal adviser to the agency’s Counterterrorism Center. After leaving the Senate, Divoll was a fellow at the Harvard Institute of Politics and an adjunct professor at the Naval Academy. She has been regularly cited by reporters in news stories, penned op-eds on counterterrorism and civil liberties, and appeared on television.
The ground rules for the interview were that it would be conducted off the record, but only temporarily, to give Divoll an opportunity to review the accuracy of the quotes she provided, and that those would be placed back on the record.
While Divoll remains legally barred from disclosing classified information, she is also still subject to a non-disclosure agreement with the Senate Intelligence Committee that bars her from discussing committee-sensitive business. Out of an abundance of caution, Divoll also conferred with the committee on Friday about her interview with TPM. She anticipated that the committee would approve the interview, noting that in her post-government career, both the committee and the CIA had never done more than request minor tweaks when she brought them pieces of her writing for pre-publication review.
This, she believed, would be a similar process.
But for the first time in her career, the committee took the extraordinary step, on a bipartisan basis, of declaring the interview’s entire contents a violation of her non-disclosure agreement and effectively forbade her from putting any of it on the record.
“The committee has reviewed your submission … and objected to any publication of the information contained therein,” she was told.
Specifically the committee claimed the information she provided TPM was both “out of date” and “committee sensitive.”
Angered by the committee’s decision, Divoll sought Friday to have it reversed. The committee declined. TPM agreed to honor her request that we leave her comments off the record.
The fact that the Committee is so sensitive about disclosing not only sensitive national security information, but also the nature by which elected officials are allowed to oversee the intelligence community, is a testament to the extreme levels of secrecy tied to the entire process.
In an interview Monday afternoon, an SSCI spokesman explained and defended the committee’s decision.
“I would say that it is pretty uncommon that we would decline a pre-publication review,” the spokesman said. “And the most direct reason is that most submissions that we get for review don’t contain this kind of information.”
That’s a reference to “committee sensitive” information, as defined in the panel’s official rules. Those rules spell out the kinds of disclosures that qualify as “committee sensitive” — documents in the committee’s possession and events that transpire in committee meetings — but they also empower the chair and vice chair or their designees to declare documents and information “committee sensitive” as they see fit on a case-by-case basis.
Most of Divoll’s statements to TPM, however, tracked closely with information gleaned from other sources, and the public record.
Among the insights Divoll shared with us was the important role that staff can and should play in oversight of the executive branch’s intelligence activities.
Feinstein herself addressed this issue on June 9 in an appearance on ABC News.
“We had an intelligence committee meeting on Thursday [June 6], which I opened up to everybody and 27 senators came. You know, we informed them that every senator, the material is available. They can come and see it. One of the strictures with how they classified stuff is no staff. I think that should be changed so that intelligence committee staff can come in with the member and go over and review the material.”
Likewise, one of the committee’s current members, and its former chairman, Sen. Jay Rockefeller (D-WV), provided TPM a statement on Thursday suggesting in broad strokes that the oversight process could be improved.
“We’ve learned from the past that there’s a right way and a wrong way to give Congress the information we need to make decisions about our laws and policies, but I think we’re still a work in progress when it comes to the level of transparency needed for meaningful exchange about ongoing activities,” Rockefeller said. “The Bush Administration launched programs without any legal authority at all and then would show just the Intelligence Committee chairs and vice chairs a few perfunctory flip-charts – which we weren’t allowed to discuss even with each other — just so they could later claim ‘Congress was briefed.’ That created a deep distrust, and for me some skepticism lingers. It took years of wrangling with the intelligence community to open briefings up to more Senators, and there is still a lot of resistance to sharing information more broadly and with the public. But the process works far better today than in the past. The FISA law we passed requires multiple regular reports from the agencies, so if we see irregularities or areas of concern, we can pursue those.”
Rockefeller’s recollections and perspective are highly compatible with Divoll’s as well.
The committee spokesman said Divoll could have modified her statements to TPM and resubmitted them to the committee.
“We have done that in other cases in the past,” he said.
Reached Monday, though, Divoll insisted she was provided no opportunity for revision. “In the past if changes were necessary, those were requested,” she said.
Our reporting yielded other, more specific details about the nature of intelligence oversight and intelligence committee legislating that we hope to share with you in a future article.